Employment Discrimination – Labor & Employment Reporthttps://www.laboremploymentreport.com
Management’s Workplace Blog – Information and Insights for EmployersMon, 18 Mar 2019 15:36:44 +0000en-UShourly1https://wordpress.org/?v=4.9.10An Employer’s Guide to March Madnesshttps://www.laboremploymentreport.com/2019/03/18/an-employers-guide-to-march-madness/
https://www.laboremploymentreport.com/2019/03/18/an-employers-guide-to-march-madness/#respondMon, 18 Mar 2019 15:36:44 +0000https://www.laboremploymentreport.com/?p=3232March Madness has descended upon employers everywhere. Yesterday was Selection Sunday for the NCAA Men’s Division I basketball tournament, and today, an estimated 40 million Americans will begin filling out their tournament brackets – many of them at work. And when the tournament begins, you can be sure that many employees will be checking scores at the office, if not actually watching the game. Others may call in sick after a late night game (particularly if their team lost). Team gear, talking smack – what to do?

Gambling: Chances are high that your office has a tournament wager pool of some kind (whether bracket-based, auction-style, squares, or a survivor pool). Chances are also high that the pool may be illegal. (?!!!) The U.S. Supreme Court struck down a federal law prohibiting state authorization of gambling schemes, and state gambling laws vary widely. Some states permit low-value social gambling amongst acquaintances, as long as the organizer does not benefit. But other (archaic) state laws still abound, rendering this type of workplace gambling illegal. Moreover, multi-state employers should be aware that certain federal laws prohibit betting across state lines.

Legality aside, such pools can also create workplace conflict. There may be reasons that employees do not wish to participate in a pool – they may have a religious objection to gambling, have a gambling addiction, lack the money to participate, or just don’t like to gamble. Those employees may feel either excluded or pressured to join in. Employees may also be poor losers or winners, fostering ill feelings. In addition, having large amounts of cash floating around the workplace is never a good idea!

Realistically, the chances of prosecution for an illegal workplace gambling pool are pretty low. Nonetheless, in states like Maryland, where such tournament pools are illegal if they include buy-in, chance and a prize, employers may wish to consider sponsoring a voluntary “no-cash” pool open to all, with a small-stakes reward, such as a gift card or a free lunch. Frankly, such a pool may be of interest to employers in all states, regardless of the applicable laws, since it may function as a morale booster for the workforce.

Computer use and cybersecurity: Some employees may access (illegal) sports-betting sites through the employer’s computer systems, and potentially expose the systems to malware. If they don’t have one already, employers may wish to consider implementing a policy that prohibits the use of company computer systems and equipment for illegal activity, such as gambling. (In fact, such a policy could prohibit the use of Internet access for personal reasons altogether – but realistically, most companies permit some limited personal use, as long as such use doesn’t interfere with productivity or system functioning.) If such a policy already exists, a reminder to employees might be useful.

The policy should also state that the employer may monitor employees’ computer usage, and that employees should have no expectation of privacy in their use of the company’s computer systems and equipment. (Emphasize this!) In addition, employers may block gambling (and other inappropriate) websites so that employees cannot access them on company systems.

Productivity: In addition to gambling during the workday, there are other workplace productivity concerns. During the beginning of the tournament, many of the games are played in the early afternoon during the week. In fact, for many years, CBS has promoted the tongue-in-cheek “boss button” to save employees from being caught by an over-the-shoulder supervisor. This problem has been magnified by the increasing ability to stream games on a myriad of devices. According to Wallethub, an estimated $4 BILLION in productivity will be lost during 2019 March Madness!

Employers should continue to enforce productivity standards, as well as relevant policies, such as those regarding the use of personal devices during working time or computer usage policies like that discussed above. Such policies should be applied consistently across the workforce in order to avoid any discrimination claims.

Dress Code and Civility Policies: Employees may wish to wear team jerseys, t-shirts or hats to show their support for their teams. Such clothing may or may not be appropriate for a particular workplace’s work environment. In addition, there may be safety or health issues associated with such apparel in workplaces involving the use of machinery (manufacturing) or hygiene (like healthcare or food service). Employers should consider and then clearly communicate what is considered acceptable for the workplace.

In addition, people may feel passionately about their teams. My sister’s mother-in-law is a die-hard UNC fan who has threatened to disown any grandchild who even thinks about applying to Duke. And she’s not kidding. This level of passion can be problematic in the workplace. Employers can certainly ensure that employees do not engage in disruptive conduct or speech, and that they treat co-workers and visitors with respect and courtesy. Again, such requirements must be applied consistently.

Attendance Policies: Employees may miss work during March Madness to watch (or even attend) games during the workday. They may also call out or arrive late after a late-night game. A complicating factor is the proliferation of sick leave laws in various states and cities – laws that prohibit employers from seeking verification for the use of sick leave if an employee calls out sick for fewer than two or three days. Sadly, the reality is that many employees may abuse these leave laws by calling out sick because of March Madness.

Employers should continue to enforce their attendance and call-in policies consistently. If an employer discovers that an employee has lied about the need for sick leave, it may discipline the employee for the dishonesty.

According to Pharmajet Blog, a surprising number of pharmacists suffer from trypanophobia – the fear of giving injections, which most in their profession have to do these days during flu season. As Pharmajet notes, the Americans with Disabilities Act generally does not help the needle-phobic pharmacist because companies have a right to define the essential functions of a job.

Consistent with this observation, the U.S. Court of Appeals for the Second Circuit in 2017 overturned a multi-million dollar jury verdict in favor of a trypanophobic pharmacist (Stevens). Stevens was terminated by Rite Aid after he said he was unable to give injections to customers due to that phobia. A jury concluded that the ADA required Rite Aid to accommodate his phobia by relieving him of the duty. The Second Circuit disagreed. The Second Circuit found that although the pharmacist had worked for over 30 years without having to perform this duty, Rite Aid had the right to add new essential job functions, which it did in a revised job description. As we all know, an employer is never required to relieve an employee of performing essential job functions. Stevens’ doctor said no accommodation could enable Stevens to administer vaccinations so he was fired. Legally, per the Second Circuit. An ADA claim vanquished!

But wait! There’s more!! On March 11, 2019, this very SAME Second Circuit ruled in favor of a trypanophobic pharmacist. The court reversed the dismissal of the pharmacist’s ADA claims. What was the difference? Well, this time there was conflicting evidence.

Here, after the requirement to administer vaccines was announced but before it became effective, the pharmacist’s employer, Wal-Mart, told him he would be exempted from the duty as an accommodation for his phobia. He even was given a letter that said he was qualified to perform the essential job functions. The letter specified that the exemption was subject to the employer’s right to change the job description in the future. A few months later, when the pharmacist was told he had to become certified to give vaccines and he refused, he was “constructively discharged” (which means he quit). This happened before the job description actually was changed. The Second Circuit said at the motion to dismiss stage, where the plaintiff should be given the benefit of all reasonable inferences in his favor, the lower court was hasty in dismissing his case.

The lessons learned?

First, written job descriptions are strong evidence of what constitute essential job functions. Employers are afforded deference here. Taking the time to have accurate JDs that specify what functions are essential can literally carry the day for employers in court.

Second, exempting employees from performing essential functions due to disabilities will undermine the employer’s position that a function is essential. In this case, Wal-Mart made the exemption to an impending change in duties, and even specified that it was conditioned on Wal-Mart’s right to update the job description. However, timing is, as they say, everything. Wal-Mart’s demand that the employee become certified happened before the job description was changed, so at least at the motion to dismiss stage, the question of whether giving vaccines was an essential job function at the time was “up for grabs.”

Finally, employers, think before you write and consider how it will be interpreted by a third party (i.e. prospective counsel to your aggrieved employee, judge, or jury)! When you are dealing with an employee who is seeking an accommodation, the written record must be precise and should hew to what the law requires. What you write may become evidence in an ADA case. Make it right!!

]]>https://www.laboremploymentreport.com/2019/03/13/pharmacist-afraid-of-needles-be-a-stickler-about-essential-job-functions/feed/0FOIA Request to the EEOC – Maybe Think About Section 83 Instead?https://www.laboremploymentreport.com/2019/03/06/foia-request-to-the-eeoc-maybe-think-about-section-83-instead/
https://www.laboremploymentreport.com/2019/03/06/foia-request-to-the-eeoc-maybe-think-about-section-83-instead/#respondWed, 06 Mar 2019 16:16:19 +0000https://www.laboremploymentreport.com/?p=3217For all you employment litigators, we just learned that you don’t have to file a Freedom of Information Act (FOIA) request with the Equal Employment Opportunity Commission (EEOC) in order to get its file on a plaintiff’s charge of discrimination! What?! Our (admittedly somewhat limited) world has been rocked!

As you may know, before someone can bring a lawsuit for discrimination or harassment against their employer, they must file a charge of discrimination with the EEOC. When defending an employment discrimination lawsuit, one of our standard actions is to file a FOIA request with the EEOC to get their investigative file on that person’s charge. (There are often all kinds of interesting, relevant nuggets of information in the file.)

But what happens is that we send off the request and then – we wait. And wait. And wait some more. Because the EEOC was already pretty backlogged on FOIA requests. (Technically speaking, it’s supposed to respond within 20 working days, with a possible 10-day extension, but I don’t think we’ve ever seen that happen.) And to make things worse, the EEOC just recently announced that, “Given the large number of requests received during the five-week government shutdown and our inability to process FOIA requests during the shutdown, there may be a delay in fulfilling your request.” (Aaargh!)

So one of our associates called the EEOC to chase down a FOIA request that had been sent a loooooong time ago. The EEOC attorney in the FOIA office informed our associate that, in the future, we should file an information request under Section 83 as opposed to FOIA in order to get information contained within charge files. According to the EEOC attorney, Section 83 requests are processed more quickly because there are less administrative hoops for the EEOC to jump through.

So what is Section 83? It’s the section within the EEOC Compliance Manual that governs the disclosure of material within a charge file. Under this section, written requests can be made by a Respondent/employer if it is a named defendant in a lawsuit.

The last question of this EEOC FAQ explains the difference between the two requests:

Section 83’s special disclosure rules only apply to requests for disclosure of investigatory employment discrimination charge files…. Section 83 is another means for aggrieved parties (persons on whose behalf a charge is filed), charging parties (individuals who file charges), respondents (entities that the charges are filed against), and their attorneys to access charge files after the Commission has completed its processing of a charge. Section 83 is a simpler means, with few formal requirements, for gaining access to your charge file.

FOIA applies to all types of agency records, including charge files. FOIA requests must be processed in accordance with the statutory dictates of the FOIA and EEOC regulations. As an illustration, EEOC regulations require that the request be identified as a “FOIA Request” on the envelope or other cover, and the FOIA specifically requires that federal agencies inform the requester in writing of the amount of information withheld, the exemption used, and how the exemption applies to the information withheld.

As with FOIA, Section 83 provides for “sanitizing” of the file. It generally seems that the same kinds of information will be withheld – attorney-client privileged information, attorney work-product, investigator memos, confidential witness statements, company confidential information, etc. But under FOIA, the EEOC has to tell you what is withheld; under Section 83, it does not. So we suppose that one potentially significant difference is that you know what you’re NOT getting in response to a FOIA request. Under Section 83, you’ll see if information is redacted from a document, but if the EEOC withholds an entire document, you may not know that you didn’t get it. And also, under FOIA, you have the right to appeal the withholding of a particular document or information – not so under Section 83. The EEOC makes this point in its FOIA webpage.

So, after our initial excitement, perhaps Section 83 may not be quite as useful as a FOIA request (unless speed is of the essence, for whatever reason). Knowing what additional information exists – even if we can’t get it – can be useful in defending a lawsuit and developing a discovery strategy. Frankly, in most cases, nothing unusual or unexpected is being withheld – but do we want to take a chance in that one case where it might have made a difference?

Some of you may ask, why not file both? And yes, that’s an option, if you want the file sooner rather than later, but still want to know what was withheld.

Anyway, something to ponder.

]]>https://www.laboremploymentreport.com/2019/03/06/foia-request-to-the-eeoc-maybe-think-about-section-83-instead/feed/0“…federal judges are appointed for life, not for eternity.”https://www.laboremploymentreport.com/2019/02/25/federal-judges-are-appointed-for-life-not-for-eternity/
https://www.laboremploymentreport.com/2019/02/25/federal-judges-are-appointed-for-life-not-for-eternity/#respondMon, 25 Feb 2019 20:04:11 +0000https://www.laboremploymentreport.com/?p=3211And with that elegantly pointed statement, the U.S. Supreme Court vacated an opinion on the Equal Pay Act that had been issued by the en banc U.S. Court of Appeals for the Ninth Circuit (i.e. the entire group of judges on the Ninth Circuit bench). The opinion had been authored by Judge Stephen Reinhardt, who unexpectedly passed away on March 29, 2018. The opinion was not issued until April 9, 2018 – 11 days after his death.

As we discussed in our April 2018 E-Update, the Equal Pay Act prohibits sex-based discrimination in compensation, and requires equal pay for equal work. The law recognizes legitimate pay differentials based on seniority, merit, the employee’s quantity or quality of work, and “any other factor other than sex.” In 1982, the Ninth Circuit found that prior salary was such a factor, and a three-judge panel of that same court came to the same conclusion in Rizo v. Yovino, which was issued in 2017. The full court was asked to revisit that opinion, Judge Reinhardt wrote the majority opinion that reversed the panel opinion and overturned the 1982 decision, holding that prior salary cannot constitute a legitimate “factor other than sex,” as it could perpetuate existing disparities based on sex.

The ten living judges on the Ninth Circuit were split evenly between approving Judge Reinhardt’s opinion and not. (Although those that did not were not opposed to the “majority” opinion – in fact they concurred with the opinion, but for different reasons). Thus, his vote made this a majority opinion with precedential effect – meaning that all other federal courts in the Ninth Circuit would be bound to follow the opinion as binding law. Noting that judges are allowed to change their minds up until the moment an opinion is issued, the Supreme Court found that Judge Reinhardt’s vote should not have counted. Rather, under Supreme Court precedent, only active status or senior judges may participate in an en banc decision; at the time of the decision, Judge Reinhardt was neither. As the Supreme Court stated, counting him as a member of the majority “effectively allowed a deceased judge to exercise the judicial power of the United States after his death.” Without his vote, there was no quorum, as required for a binding decision.

What does this mean for the Yovino v. Rizo case, and its impact on employers in the Ninth Circuit? Well, the en banc opinion no longer has effect and the case has been sent back to the Ninth Circuit for further proceedings. So, for the moment, from a technical standpoint, employers in the Ninth Circuit may continue to consider prior salary as a legitimate “factor other than sex,” which is the position that has also been taken by the Seventh Circuit. However, we would certainly caution those employers from proceeding blithely forward with that position – the Ninth Circuit seems to be heading in the direction set forth by Judge Reinhardt, sooner or later.

]]>https://www.laboremploymentreport.com/2019/02/25/federal-judges-are-appointed-for-life-not-for-eternity/feed/0Yes, Unions Discriminate Against Workers Too!https://www.laboremploymentreport.com/2019/02/21/yes-unions-discriminate-against-workers-too/
https://www.laboremploymentreport.com/2019/02/21/yes-unions-discriminate-against-workers-too/#respondThu, 21 Feb 2019 16:20:17 +0000https://www.laboremploymentreport.com/?p=3203Last week, the Equal Employment Opportunity Commission announced that it entered into a consent decree resolving its race discrimination lawsuit against a union representing firefighters. This is particularly ironic, given that unions hold themselves out as advocates for workers’ rights.

The 2012 lawsuit, EEOC v. Jacksonville Ass’n of Firefighters, Local 122, alleged that the union advocated for an illegal promotional process that had a disparate impact on African-American candidates for promotion. The consent decree also settled a companion race discrimination case filed by the U.S. Department of Justice against the Jacksonville Fire and Rescue Department (JFRD) for the department’s role in the promotional process. The consent decree requires the City of Jacksonville to develop a new promotional exam for the selection of certain positions, offer up to 40 promotions to qualified African-Americans, and establish a $4.9 million settlement fund for eligible promotion candidates – and (no surprise!) the union is not chipping in, despite its significant role in negotiating the unlawful promotional process.

One of the most striking facts about this case is the union’s initial intransigence after being put on notice that the promotional process it was advocating for may have been illegal. In 2006, the City of Jacksonville’s Human Rights Commission issued a report recommending changes to the JFRD promotional process. Two years later, the union received an EEOC Commissioner’s discrimination charge regarding the promotional process. Nevertheless, the union persisted in pushing the unlawful promotion process that ultimately led to the consent decree.

Just another example of unions behaving badly.

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]]>https://www.laboremploymentreport.com/2019/02/21/yes-unions-discriminate-against-workers-too/feed/0Another State Finds No Federal Preemption of Its Medical Marijuana Lawhttps://www.laboremploymentreport.com/2019/02/07/another-state-finds-no-federal-preemption-of-its-medical-marijuana-law/
https://www.laboremploymentreport.com/2019/02/07/another-state-finds-no-federal-preemption-of-its-medical-marijuana-law/#respondThu, 07 Feb 2019 19:11:04 +0000https://www.laboremploymentreport.com/?p=3193Employer obligations to consider the use of medical marijuana as a reasonable accommodation just got murkier with a new case out of Delaware, Chance v. Kraft Heinz Foods Co., decided in December 2018.

The employee was a Yard Equipment Operator for Kraft Heinz. Unbeknownst to Kraft Heinz, the employee obtained a medical marijuana card for various medical issues. In August 2016, the employee alerted Kraft Heinz to unsafe conditions in the railroad yard. That same day, the employee was operating a shuttle wagon on the railroad tracks when it derailed. As you might expect, Kraft Heinz requested the employee undergo a drug test, which revealed the presence of marijuana. The employee informed the medical review officer he had a valid medical marijuana card, but Kraft Heinz terminated the employee in late August 2016.

Of course, marijuana remains an illegal Schedule I substance under the federal Controlled Substances Act (“CSA”), so Kraft Heinz argued that federal law is in conflict with the Delaware Medical Marijuana Law (“DMMA”). Expressly following in the footsteps of courts in Connecticut and Rhode Island, the court concluded that because the CSA does not make it illegal to employ someone who uses marijuana nor does it regulate employment matters, the state law (DMMA, in this case) and CSA can both apply.

Next, the court considered whether the DMMA gave an employee the ability to bring a lawsuit even though the DMMA was silent on this point. The court noted that Delaware is one of only nine states whose medical marijuana law expressly prohibits the failure to hire, discipline or discharge an employee who uses medical marijuana outside of work and tests positive on a drug test. (The other states with such laws are Connecticut, Rhode Island, Arizona, Illinois, Maine, Nevada, New York, and Minnesota.)

Relying again on the Rhode Island decision, Callaghan v. Darlington Fabrics Corp., the court concluded that because the DMMA has a specific anti-discrimination provision, the Delaware legislature must have intended to permit the employee to sue under the DMMA.

What the ruling means is the employee will be allowed to move forward with discrimination claims arising out of Delaware’s medical marijuana statute. Up until several years ago, courts had generally found that employers were not required to accommodate medical marijuana use under state law because marijuana is illegal under federal law. This position, however, is no longer necessarily the case. Employers with operations in Delaware and other states with marijuana laws should carefully consider the language of these laws and whether they may impact employment.

]]>https://www.laboremploymentreport.com/2019/02/07/another-state-finds-no-federal-preemption-of-its-medical-marijuana-law/feed/0RIFs Are Not the Easy Solution for Problem Employeeshttps://www.laboremploymentreport.com/2019/01/16/rifs-are-not-the-easy-solution-for-problem-employees/
https://www.laboremploymentreport.com/2019/01/16/rifs-are-not-the-easy-solution-for-problem-employees/#respondWed, 16 Jan 2019 16:33:04 +0000https://www.laboremploymentreport.com/?p=3091Some employers view a reduction in force as an apparently easy and clean way to get rid of employees they do not want – like poor performers, who have not been properly performance-managed. There may even be less appropriate considerations in mind – an older employee viewed as slowing down, an employee with health problems who has missed a lot of work, a pregnant employee who will need leave after her child’s birth. These employers assume that if the employee accepts a severance package and signs a release, the matter is closed. The case of Hawks v. Ballantine Communications, Inc., however, highlights the peril of such thinking.

In that case, several employees were told that they were being let go because of downsizing. They accepted a severance package that required them to sign a release of claims. Almost immediately afterward, however, the company posted the same jobs and eventually hired younger employees for those positions. The terminated employees then sued the company for age discrimination, arguing that the releases they had signed were not valid because the company had given fraudulent reasons for their termination. The court, in refusing to dismiss the claims, recognized that an agreement can be unenforceable if it is fraudulently induced.

What does this mean for employers? Do not go for the quick but legally questionable tactic of culling unwanted employees through a supposed RIF, when you actually just want to replace them. It is important to take the effort to address performance issues through appropriate performance management techniques.

]]>https://www.laboremploymentreport.com/2019/01/16/rifs-are-not-the-easy-solution-for-problem-employees/feed/0Extraordinary Employee Misconduct: Hitting on Arrestees!https://www.laboremploymentreport.com/2019/01/09/extraordinary-employee-misconduct-hitting-on-arrestees/
https://www.laboremploymentreport.com/2019/01/09/extraordinary-employee-misconduct-hitting-on-arrestees/#respondWed, 09 Jan 2019 19:15:16 +0000https://www.laboremploymentreport.com/?p=3174In my occasional series on extraordinary employee misconduct, I was both shocked and amused by a case involving a trooper who was fired after he hit on a female motorist after arresting her! While he was on a last chance agreement for (wait for it…) hitting on another female motorist after arresting her! I mean, I know the dating scene can be rough, but this really does not seem like a good dating approach.

In this case, Johnson v. Ohio Dept. of Public Safety, the trooper pulled over and arrested a female motorist for DUI. During the stop, he told her he would take her to a nearby Waffle House, where they made “fantastic waffles.” A month later, he stopped her again – without probable cause and without radioing the stop to his post, as required by Highway Patrol policy. During this second stop, the trooper told the woman that he liked her, and he apologized for not coming back to take her to the Waffle House. Although she said she was dating someone, he offered to meet up with her at a casino and gave her his personal cell phone number – directing her to write it down in a secret location where others would not see it.

This budding romance was cut short by a concerned citizen (the woman’s boyfriend, maybe?), who reported this interaction. The department investigated, and found the trooper to have violated several policies, including “Conduct Unbecoming an Officer.” (No argument here). In lieu of termination, he was placed on a last chance agreement that included: suspension without pay; termination if he engaged similar conduct; a waiver of the right to pursue legal action against his employer; and a two year effective period at the end of which, if he did not violate the agreement, it would become null and void, and removed from his record. That all seems pretty reasonable, right?

Apparently not for the hot-blooded trooper. Approximately 18 months later, he pulled over another (allegedly) drunken female motorist. He arrested, searched and handcuffed her before taking her to the police station. When she was released, he insisted on taking her home (although she had arranged another ride) and, in violation of departmental policy, failed to turn on his in-car camera. Once they got to her house, he radioed that he had left the scene. In fact, he did not. He spent at least a half-hour inside her house – and we don’t know what they were doing. And he later texted her from his personal cell phone. All of this was revealed when another concerned citizen made a complaint.

It is no surprise that the trooper was terminated for violating his last chance agreement. The surprise is that he then sued the department for race discrimination! He argued that a white trooper (our amorous trooper is black) was treated more leniently for similar misconduct. The white trooper had been accused of seeking to “friend” citizens he encountered during traffic stops, but those accusations were unsubstantiated. He was counseled to avoid any such conduct, but, three years later, attempted to “friend” another woman whom he had stopped for speeding. He was suspended for a day – not terminated.

The court, however, found that the white trooper was not similarly situated to the black trooper – his initial offenses were unsubstantiated (unlike the black trooper’s initial misconduct) and, more critically, the white trooper was not on a last chance agreement that specifically provided for termination for any further such conduct. Thus, the contention that the white trooper was treated better than the black trooper for similar misconduct was without merit, and the black trooper’s race discrimination claim failed.

Now, I understand that people often meet their significant others through work. But there have to be better ways to make friends and get dates than by arresting them!

]]>https://www.laboremploymentreport.com/2019/01/09/extraordinary-employee-misconduct-hitting-on-arrestees/feed/0Leaving Work Early Due to Fear of Rush-Hour Traffic Is Not a Reasonable Accommodationhttps://www.laboremploymentreport.com/2018/12/27/leaving-work-early-due-to-fear-of-rush-hour-traffic-is-not-a-reasonable-accommodation/
https://www.laboremploymentreport.com/2018/12/27/leaving-work-early-due-to-fear-of-rush-hour-traffic-is-not-a-reasonable-accommodation/#respondThu, 27 Dec 2018 13:51:19 +0000https://www.laboremploymentreport.com/?p=3166An employee requested that she be permitted to leave work early every day due to her anxiety triggered by driving home in heavy traffic (those of us in major metropolitan areas would never survive!). When her demand was rejected and she ended up being terminated, Heather Trautman brought suit against her employer, alleging violations of the Americans with Disabilities Act, the Family Medical Leave Act, and related state laws, Trautman v. Time Warner Cable Texas, LLC.

While pregnant, Trautman had a panic attack while driving home in rush hour. Although her position required her to be in the office to interact with other members of her team, her supervisor agreed she could leave the office between 2 and 3 p.m. and work remotely for the rest of the day due to her phobia of rush-hour traffic.

Time Warner’s generosity continued after the birth of Trautman’s child in December 2013. Because she was having difficulty transitioning her baby to a bottle, Time Warner permitted her to work remotely for the entirety of 2014! (Note, transitioning a child from breast-feeding to bottle-feeding is not legally protected).

As often happens when a new supervisor takes control, in December 2014 Trautman’s new boss no longer permitted her to work remotely full-time. Not surprisingly, Trautman requested a modified schedule that would permit her to work from home in the afternoons due to her anxiety over driving in rush hour traffic. Time Warner denied this request as unrelated to an essential function of her job but offered to end Trautman’s workday at 4 p.m.

Instead of even attempting that schedule, or exploring public transit that would not require driving in rush hour, Trautman requested intermittent FMLA. She was granted some intermittent FMLA but was ultimately terminated for excessive absenteeism, which did not include her FMLA-approved leave.

The U.S. Court of Appeals for the Fifth Circuit ruled in favor of Time Warner, finding that Trautman was indeed terminated for excessive absenteeism rather than disability discrimination or FMLA retaliation, and that Time Warner did not deny Trautman a reasonable accommodation.

What I find striking about this case—aside from the audacity of the Plaintiff to file suit after Time Warner had provided her with telework and other modifications to which she was not legally entitled—was that the Court credited Time Warner for good behavior. In determining that Time Warner’s reason for termination was not “pretext” for discrimination, the Court noted that Time Warner had a history of granting Trautman’s accommodation and FMLA requests back to 2013 “even when it was not required to do so by law.” The Court also credited Time Warner for its flexibility in offering a 4 p.m. departure and dinged Trautman for responding to a schedule modification by asking for an 11 a.m. departure and refusing to consider alternatives to driving, noting that her behavior was “not the stuff of flexible, interactive discussions” as required by the ADA. Time Warner’s actions of going above and beyond to assist Trautman ultimately helped secure a victory when she sued the company.

]]>https://www.laboremploymentreport.com/2018/12/27/leaving-work-early-due-to-fear-of-rush-hour-traffic-is-not-a-reasonable-accommodation/feed/0Tattoos and Social Media = Age Discrimination?https://www.laboremploymentreport.com/2018/12/20/tattoos-and-social-media-age-discrimination/
https://www.laboremploymentreport.com/2018/12/20/tattoos-and-social-media-age-discrimination/#respondThu, 20 Dec 2018 20:03:04 +0000https://www.laboremploymentreport.com/?p=3158When a company relaxes its workplace policies to allow employees to openly display tattoos and use social media at work, does that mean it’s discriminating against older people? That question presumes that only younger people have tattoos and use social media (which is itself discriminatory!). But, in Wyss v. PetSmart, Inc., a 60-year old employee attempted to use her employer’s social media policy and permission to display tattoos and piercings as evidence of age discrimination!

In September 2014, store management counseled the employee after she had been caught speaking negatively about a coworker. The employee didn’t deny making the comments, and instead complained that the store was hiring “young kids” and was phasing out “old people,” and disagreed with “the direction of the company in wanting team members with tattoos and [gauges] in their ears.” Management reminded her of its “Dignity in the Workplace” policy’s prohibition against discrimination, including that based on age and appearance.

The employee apparently didn’t listen. A month later, she was again counseled after making negative comments about the same coworker, and she admitted that she didn’t want to work with him. She also, of course, took this time to complain about management’s acceptance of employees “displaying tattoos and piercings, and unprofessional behavior, including gossiping and cliques.” She then exhibited some unprofessional behavior herself by demanding that management either get rid of her coworker or not schedule him with her.

A few weeks later, the employee complained about employees being allowed to use social media while at work. Although she was told that the store wanted employees to use social media to be proud of their work, she said it was “nonsense,” and the store “wanted all young people working there.” Management reiterated to her that speaking about employees’ ages and calling staff “young kids” was not appropriate.

Ultimately, management terminated the employee after concluding that she had no desire to treat her coworkers with respect. She turned around and sued for age discrimination. Since she had no evidence of ageist statements by management, the employee contended that other evidence demonstrated the store’s bias toward younger workers: specifically, that younger employees “were granted accommodations” that were meant to appeal to younger, rather than older, employees, because previously-prohibited practices (openly displaying tattoos, piercings, and unnatural hair color) were now permitted. She explained that these practices were more common and “stereotypical” of people younger than thirty rather than people in their forties and older. She also argued that the one “accommodation” she requested, to not be scheduled with the coworker, was denied. (By the way, I just want to remind you that, under the Age Discrimination in Employment Act, accommodations are not required for age).

The court found that the store didn’t require the employee to start displaying tattoos, piercings, or any other practice that could be considered “stereotypical” of younger people to keep her job. The store just allowed others do so, regardless of their age. Notably, her requested “accommodation” went directly to the reason she was terminated – her unwillingness to treat others with respect. Regardless of whether they are sporting tattoos or piercings.